December 12, 2008

No COLA For Federal Judges

Don't be surprised if the next federal judge you see is a little testier than usual. Yet another attempt to win from Congress a cost-of-living adjustment (COLA) for judicial salaries died Thursday night.

Here's how it fell apart. Prospects seemed good for a fleeting moment earlier this week. Without much fanfare the House had passed a 2.9 percent COLA for judges as part of the carmakers’ bailout on Dec. 10. And since the Senate had passed it as stand-alone legislation Nov. 20, that sounds like passage by the required two houses of Congress, right? No, because the different ways in which the adjustment was enacted did not leave the president a single clean judicial-COLA-only bill to sign.

So to seal the deal, the Senate yesterday had to pass what the House had passed Wednesday -- an iffy proposition because Senate Republicans were balking at the automakers' bailout bill in which the COLA provision was included. But even before the Senate killed the bailout, the judges' COLA got into unexpected trouble. Some press reports on the House action portrayed it as a judicial "pay raise" that had been tucked into the House bill -- rather than an adjustment that barely keeps them even with inflation. The news reports, apparently, scared off the Senate.

“Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” After that, it was little surprise that senators supporting the auto bailout began the process of pulling the judicial provision out of the bill. They did not want to jeopardize any much-needed votes. But then the whole thing collapsed anyway.

So, federal judges will now have another distinction besides life tenure: They are the only federal employees who will begin 2009 without a COLA. James Duff, director of the Administrative Office of the U.S. Courts, today acknowledged that these are “challenging times” for the economy, but he added in a statement, “That is no reason for Congress to treat federal judges differently than all other federal employees, including members of Congress.”

Judges will try again for a COLA in January and will press to repeal the law that requires an affirmative annual vote for judicial COLAS. (It’s automatic for other federal workers.) But prospects for any substantial raises beyond the COLA appear to have fizzled with the economy.
Judges will not be happy, and don’t be surprised if more speak out -- or leave. Peter Fay, a senior judge on the U.S. Court of Appeals for the 11th Circuit, recently told a Florida bench-bar conference that “judicial salaries are an outrage. The situation is beyond embarrassment. It’s insulting.”

Comments

The COLA raises a chicken and egg question - does the COLA offset inflation, or is it really the cause of inflation?
It is now time for the Government to take the lead and reexamine the underlying economic philosophy to determine the real benefits or detriments of the COLA.

It seems to me that several previous commentators are missing the point. The "pay raise" for judges merely was the same percentage adjustment that Congress allowed itself and senior government employees (inlcuding ALJs). It was not even close to the percentage increase being received by Federal GS and other employees when locality pay is considered. Furthermore, as someone who has practiced in the Federal area for over 30 years, I can attest to the fact that the remarks about the quality of Federal judges were ignorant.

I mean, I get that when federal judges take the bench, they take prestige and service over money. But first-year associates now make more than Circuit Judges and (if you include bonuses) almost as much as Supreme Court Justices. (The first-years made about the same as Justices last year, but bonuses have dropped due to the economic downturn.)

Nobody's arguing that they should eliminate compensation for new Article III judges and all Article I judges. Rather, everyone seems to agree that we should pay them something. And the real question is "what?" Perhaps you can make the case that they make enough now, but the opponents of judicial pay increases never argue that. They just say less is better.

(This is akin to the Republicans' lower-taxes-mean-higher-revenue argument, which Democrats rightly reject out of hand because it means that a marginal tax of zero would yield the most revenue.)

There is no justification for singling out members of the federal judiciary for this disadvantage. Don't people know that they are some of the hardest-working federal employees we have? It would be a great pity to lose the expertise of these jurists because of politics.